Spoiler alert: Myanmar is about to adopt IPR laws

Myanmar is a founding member of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO), and a World Intellectual Property Organization (WIPO) member since 2001. It is, thus, surprising for some to see that this country still does not have a coherent set of Intellectual Property Rights (IPR) laws.

Myanmar agreed to draft its IPR legal framework in accordance with the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement), and was given until July 1, 2013, to adopt such a framework. Adoption would provide, for the first time, comprehensive protection for copyrights, trademarks, patents, industrial designs and other intellectual property under the WTO. Unfortunately, Myanmar did not complete the drafting of such laws by its deadline, but the country is expected to enact the required IPR protection by the summer of 2014. For patents for pharmaceutical products under the WTO, Myanmar has until 2016 to adopt pertinent legislation.

Without such comprehensive laws, patents and industrial designs are arguably still governed by the India Patents and Design Law of 1911, although no one in Myanmar seems to believe it. The 1911 statute was applied to the British territory of India and Burma. In 1945, the 1911 law was replaced by the Patents and Designs Act, which never became effective and it was repealed by the Myanmar government in 1993. With no replacement legislation, under the Patents and Designs (Emergency Provision) Act of 1946, Section 2, the India Patents and Design Law of 1911 is still in force, but with no effect. The Myanmar Office of Registration of Deeds will not register any patent or industrial design applications, although it will do so for trademarks under Section 18(f) of the Registration Act.

In practice, IPR are protected under various provisions of a myriad of laws, the first of which is the Myanmar Constitution of 2008. Furthermore, for example, one can find the definition of trademark in Section 478 of Penal Code and the Penal Code also provides penalties for infringement of a registered trademark. Yet, civil remedies can be secured through civil action based on the Myanmar case law.

Other laws which contain IPR protection section include:

Merchandise Marks Act

Specific Relief Act

Sea Customs Act

Land Customs Act

Foreign Direct Investment Law

Myanmar Citizen Investment Law

Private Industry Law

Science and Technology Development Law

Computer Science Development Law

Television and Video Law

Motion Picture Law

The Electronic Transaction Law

Control of Money Laundering Law.

The only formal IPR protection law is the Burma (Myanmar) Copyright Act of 1911, dating from the British colonial era. The country, however, has not adhered to the Berne Convention, the TRIPS Agreement, and the WIPO Internet treaties (the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty) which would have extended protections to non-hosted Internet-based piracy, unauthorized camcording of motion pictures, or the unlawful dissemination of decrypted broadcast content. Furthermore, under Section 3 (b) of the Copyright Act, the protection conferred by that Act may be extended to a foreign copyright only by notification of the President of the Union. We do not know of any notification to the Union President which has actually taken place under this provision of this Act.

It may be useful to review the proposed draft Myanmar Copyright Law to understand the depth of the issues concerning the adoption of such legislation. A good precedent to this effort is the amendment to the Merchandise Marks Act (Law No. 35/2013). The proposed Copyright bill, in its draft sections 2(AS) and 2(AT), includes no express prohibition against the trafficking in devices designed to circumvent copyright protection, nor does it provide for civil penalties in such cases. This issue, in particular, becomes evident in the context of pirate commercial services. Furthermore, the draft provides the government the right to exclude from copyright protection works which are “contrary to public order, morality and faith” (Section 8(b)), or works “involving the prohibitions of any existing Law” (Section 8(c)), or “translations … made by the Ministries, Departments or any other government or local units“ (Section 8(h)), or the use by “any governmental department and organization” of works “for the interest of the public and not for commercial purpose” (Section 79). All of these provisions are contrary to the terms of the Berne Convention and/or the TRIPS Agreement.

The impetus for adoption of the IPR laws this summer seems to stem from the Myanmar government’s realization that, without such action, it stands little chance to be granted, once again, the GSP status it seeks from the United States. Once enacted, though, implementing regulations should follow shortly, and the entire subject should be clarified for foreign copyright owners under the country’s 2012 Foreign Investment Law. Myanmar has come a long way to becoming again a full member of the international community. IPR protection is an essential element of that effort, and Myanmar will hopefully cross that threshold later this year.

Contributing Author

Eric Rose

Eric Rose is the Lead Director of Herzfeld Rubin Meyer & Rose, the first US law firm in Myanmar. He focuses on the global aspects...